Thursday, February 13, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

Jewell Reuter lived in a mobile home on a small portion of her family’s land for more than twenty years. For simplicity, we refer to that small portion of land as Reuter’s land. Reuter made a home for herself; she tended the land, gardened, and installed a septic system and water lines to access a nearby well. Unbeknownst to Reuter, her land was never deeded to her. In 2010, Larry Flick, a non-relative, purchased 2.28 acres of the family land in a foreclosure sale. When the parties learned that Flick’s 2.28 acres included nearly all of Reuter’s land, part of her septic system, and the well she used, a bitter quarrel over ownership of the land ensued.

While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter’s land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.

Although we ultimately conclude that Reuter’s adverse-possession and prescriptive-easement claims fail, we affirm the trial court’s $29,487.70 judgment against Flick for damages he caused by attempting to eject Reuter without court authorization. Indiana Code section 32-30-2-1 provides that a person having a valid interest in real property and a right to the possession of that property may recover it and take possession by bringing an action against a person claiming the title or interest in the real property. Flick disregarded the statute and engaged in unconscionable self-help; he must pay for the damage he caused by taking the law into his own hands. We reverse in part, affirm in part, and remand. * * *

To prevail on her claim, Reuter must show that Flick’s arguments on appeal are “utterly devoid of all plausibility.” Bergerson v. Bergerson, 895 N.E.2d 705, 716 (Ind. Ct. App. 2008) (citations omitted). As Flick’s appellate arguments have prevailed, we cannot say Reuter has met her burden. We therefore deny her request for appellate attorney’s fees.

Reversed in part, affirmed in part, and remanded for further proceedings.

Wendy Thompson appeals her sentence for four counts of Class D felony operating a motor vehicle with a blood-alcohol concentFration of at least 0.08 causing serious bodily injury. She raises two issues on appeal. First, she argues that her sentence exceeds the maximum sentence allowable under the consecutive-sentencing statute because Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is not a “crime of violence” within the meaning of Indiana Code section 35-5-1-2(a). Second, she argues that her sentence is inappropriate in light of the nature of the offenses and her character. Finding that Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is a “crime of violence” and that Thompson’s sentence is appropriate in light of the nature of the offenses and her character, we affirm.

Morgan claims that Indiana Code section 7.1-5-1-3, which states that it is a Class B misdemeanor if an individual is intoxicated while in a public place and “harasses, annoys, or alarms another person[,]” is unconstitutionally vague. I.C. § 7.1-5-1-3(a)(4). Specifically, Morgan argues that “the statute fails to define ‘annoys,’ and there is no objective standard for evaluating what ‘annoys’” constitutes. (Appellant’s Br. p. 7). Morgan also contends that the statute encourages arbitrary and discriminatory enforcement. In response, the State contends that Morgan has waived the issue on appeal by failing to challenge the statute’s constitutionality through a pre-trial motion to dismiss. * * *

Yet, even in cases where the defendant has failed to file the necessary motion to dismiss, Indiana’s appellate courts have, at times, considered claims that a statute is unconstitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In fact, our supreme court has previously determined that “the constitutionality of a statute may be raised at any stage of the proceeding.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992). * * *

Comparing our prior decisions to the case at hand, we find the challenged portion of Indiana’s public intoxication statute to be unconstitutionally vague. Namely, the statute neither requires that a defendant have specifically intended to annoy another, nor does it employ an objective standard to assess whether a defendant’s conduct would be annoying to a reasonable person. Furthermore, the statute does not mandate that the defendant have been first warned that his behavior was considered annoying conduct. Instead, this section of the statute enables arbitrary and discriminatory enforcement because the illegality of any conduct—no matter how trivial or how substantial—is based solely on the subjective feelings of a particular person at any given time. * * *

The record reveals that, despite numerous warnings from Officer Garner, Morgan yelled and made unreasonable noise, even threatening to “to kick [Officer Garner’s] ass.” (Tr. p. 30). We therefore find that there was sufficient evidence for the State to determine that Morgan had abused his right to speak.

CONCLUSION. Based on the foregoing, we conclude that Section (a)(4) of the public intoxication statute is unconstitutionally vague and cannot be the basis of Morgan’s conviction. We also conclude that there is sufficient evidence to uphold Morgan’s conviction for disorderly conduct.